Thomas Balmer+alan Thomas Balmer+anne Balmer V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Eassie,Lord Wheatley |
| Court | High Court of Justiciary |
| Date | 25 July 2008 |
| Published date | 25 July 2008 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Eassie Lord Wheatley Lady Paton | Misc 119/07 Misc 121/07 Misc 120/07 |
| OPINION OF THE COURT delivered by LORD in the petitions to the nobile officium of the High Court of Justiciary by (First) THOMAS WILLIAM BALMER, (Second) ANNE BALMER, and (Third) ALAN THOMAS BALMER Petitioners; against HER MAJESTY'S ADVOCATE Respondent. |
Act: (First Petitioner) Brodie; Levy & McRae, Glasgow
(Second Petitioner) Duguid Stacey, Q.C., AndersonBalfour; HBM Sayers, Glasgow
The Anderson Partnership.
(Third Petitioner) Stacey DuguidDuguid Q.C., Balfour;G. Anderson
HBM Sayers, Glasgow
Alt: Bain Q.C., A.D., Gill; Crown Agent.; The Anderson Partnership.
February 200825 July 2008
Introduction
[1] Each of the three petitioners, Thomas William Balmer, Anne Balmer and Alan Thomas Balmer, has presented a petition to the nobile officium of the High Court of Justiciary. The three petitions are in similar terms and raise the same issue relating to tthe competency of an indictment brought by the respondent against "Rosepark Care Home also known as Rosepark Nursing Home, a now dissolved firm". The petitions were heard together.
[2] The first and second petitioners are husband and wife, and the third petitioner is their son. They formerly carried on business in partnership under the firm name of Rosepark Care Home (or Rosepark Nursing Home). The firm formerly owned and operated a care home ("the home") under that name at 261 New Edinburgh Road, Viewpark, Uddingston. The firm was dissolved, apparently by agreement among the partners, on 28 February 2005. It is hereinafter referred to, as the context requires, as "the firm" or "the dissolved firm".
[3] It is alleged by the respondent that on 31 January 2004 a fire occurred at the home, and that as a result fourteen residents in the home died, four others were injured and the remaining twenty two were evacuated.
The present indictment
[4] The respondent has served on each of the petitioners an indictment in inter alia the following terms:
"ROSEPARK CARE HOME also known as ROSEPARK NURSING HOME, a now dissolved firm, in respect of which Thomas William Balmer ... Anne Balmer ... and Alan Thomas Balmer .....are the whole surviving partners thereof, and which firm between the dates of 1 April 1996 and 28 February 2005 at 261 New Edinburgh Road, Viewpark, Uddingston, carried on the business or undertaking of a residential care home; ...
you are indicted at the instance of The Right Honourable ELISH ANGIOLINI, Queen's Counsel, Her Majesty's Advocate, and the charges against you are that ...".
The indictment contains seventeen charges against the firm.
[5] A second accused has also been indicted, namely Balmer Care Homes Limited, and fourteen separate charges are laid against that company in respect of the conduct of a different care home. These petitions are not concerned with the charges brought against Balmer Care Homes Limited.
[6] Each charge libelled against the firm is a charge of contravention of a statutory provision. All the charges against the firm proceed on an averment that the firm was at the material time an employer in terms of the Health and Safety at Work etc. Act 1974 ("the 1974 Act"). It is unnecessary to set out the terms of the charges in detail. Charge 1 may be taken as an example. It libels that between 1 April 1996 and 31 January 2004 at the home the dissolved firm did carry on the business or undertaking of a residential care home registered to provide care and nursing for up to 43 residents in the categories of frail elderly, elderly with mild mental illness, terminally ill and young physically disabled, and being an employer in terms of the 1974 Act, did fail to conduct its undertaking in such a way as to ensure so far as was reasonably practicable that persons not in its employment who might be affected thereby were not thereby exposed to risks to their health and safety, and did fail to devise, institute, implement and maintain an adequate and effective system or strategy for fire safety at the home. There then follow averments giving further specification of the alleged failures. The narrative then sets out the occurrence of the fire on 31 January 2004, and the consequent death and injury of named residents. The charge concludes by stating that in these circumstances there was a contravention of sections 3 and 33(1)(a) of the 1974 Act.
The previous indictment
[7] In order to understand how matters have developed, it is necessary to note certain events that preceded the service of the present indictment. On 9 December 2005 the petitioners appeared at Hamilton Sheriff Court to answer a petition at the instance of the Procurator Fiscal which charged them with certain contraventions of the 1974 Act. The statutory provisions which they were alleged to have contravened placed duties on employers. The petition narrated that they were at the material times partners in the firm, and that they were employers in terms of the 1974 Act.
[8] On or about 14 August 2006 an indictment was served on the petitioners charging them with certain contraventions of the 1974 Act and related statutory provisions. Again, the statutory provisions which they were alleged to have contravened placed duties on employers. The indictment contained averments that the petitioners were at the material times partners in the firm and were employers in terms of the 1974 Act. Further indictments in the same terms were subsequently served.
[9] At a preliminary hearing on 19 and 20 February 2007 Lord Hardie sustained pleas to the relevancy of the indictment against the petitioners, and dismissed it. He did so on the ground that the employer of those working at the home was at the material time the firm; that the firm was a separate legal person from the partners; and that accordingly the petitioners were not employers in terms of the 1974 Act.
[10] The respondent appealed against Lord Hardie's decision, but at the hearing of the appeal on 27 June 2007 abandoned it.
The petitions
[11] Following the abandonment of the appeal, the present indictment, summarised in paragraphs [4] and [5] above, and relative citations were served on the petitioners. They each presented a petition to the nobile officium of this court. The remedies which they sought were (a) declarator that the dissolved firm had not been competently indicted; (b) dismissal of the purported indictment; (c) declarator that the petitioners were not "accused" within the meaning of section 66 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") and thus under no compulsion to attend court in answer to the purported citations served on them; and, (d) in any event, declarator that in the event that the dissolved firm was convicted, the Crown might not recover from the petitioners any penalty imposed on the dissolved firm.
[12] In her Answers to the petitions, the respondent admitted that the only parties to the indictment proceedings were herself and the accused, the accused being (1) the firm and (2) Balmer Care Homes Limited. It was averred that the Crown did not consider the petitioners to be parties to the proceedings.
[13] The respondent pleads that the petitions are incompetent. The issues raised by that plea are not, however, readily separable from those relating to the merits of the petitions. At a procedural hearing on 25 September 2007 the petitions were accordingly appointed to a conjoined full hearing on the whole issues therein. When the petitions came before the court for the latter hearing, it was agreed among the parties and accepted by the court that, notwithstanding the respondent's plea to competency, the petitioners would address the court first.
[14] In the very briefest outline, the petitioners' contention is that the firm was a legal person which ceased to exist when it was dissolved on 28 February 2005, and that it therefore could not thereafter be indicted. The present indictment is therefore incompetent. The respondent's contention, also in briefest outline, is that a partnership continues to exist after dissolution for the limited purpose of winding up its affairs and settling its outstanding liabilities; that the former partners continue to have authority to act on the firm's behalf for that limited purpose; and that the present indictment against the firm is such an outstanding liability. The present indictment is therefore competent.
[15] The issues between the parties to the petitions turn on aspects of the law of partnership. The law of partnership is partially codified in the Partnership Act 1890 ("the 1890 Act"), and it is convenient at this stage to set out for reference those provisions of it which are relevant to the issues which will be discussed.
[16] Section 1(1) of the 1890 Act deals with the definition of partnership, and provides:
"Partnership is the relation which subsists between persons carrying on a business in common with a view of profit."
[17] Section 4 deals with the meaning of firm. Subsection (1) provides:
"Persons who have entered into partnership with one another are for the purposes of this Act called collectively a firm, and the name under which their business is carried on is called the firm-name."
[18] Section 4(2) provides:
"In Scotland a firm is a legal person distinct from the partners of whom it is composed, but an individual partner may be charged on a decree or diligence directed against the firm, and on payment of the debts is entitled to relief pro rata from the firm and its other members."
[19] Section 5 deals with the power of partners to bind the firm, and provides:
"Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his...
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